FCA/115/2008 of Smt. Bonthala Rambai Vs Bonthala Suryanarayana Rao on 31 December 2014

THE HON’BLE SRI JUSTICE RAMESH RANGANATHANANDTHE HON’BLE SRI JUSTICE M. SATYANARAYANA MURTHYF.C.A.No.115 of 2008

JUDGMENT (Per the Hon’ble Sri Justice M. Satyanarayana Murthy)

The unsuccessful plaintiff in O.S.No.33 of 2002 on the file ofJudge, Family Court, Visakhapatnam, preferred this appealaggrieved by the judgment and decree passed by the trial Courtdated 19.10.2006.

2. The appellant is the plaintiff and the respondent is thedefendant before the trial Court. The parties hereinafter arereferred to as arrayed before the trial Court.

3. The plaintiff filed the suit for enhancement of maintenancefrom Rs.200/- to Rs.5,000/-per month alleging that her marriagewith the defendant took place in the month of June, 1972 atSrikakulam as per Hindu rites and customs and during theirwedlock, they were blessed with two children, who were aged 20and 17 years respectively. While they are leading marital life, thedefendant developed illicit contact with one Savithri and livingpresently with her. Despite several mediations, the defendant didnot provide any maintenance to the plaintiff. Hence, she filedO.S.No.337 of 1984 claiming maintenance under the provisions ofHindu Adoption and Maintenance Act, 1956 (for short ‘the Act’),but the trial Court awarded only Rs.200/-per month asmaintenance by judgment dated 06.03.1985, taking intoconsideration of the salary being drawn by the defendant duringthose days. The plaintiff also filed a petition for restitution ofconjugal rights under Section 9 of Hindu Marriage Act, 1955, whichwas decreed.

4. The defendant is working as Cashier in Indian Overseas Bank, Srikakulam, drawing Rs.14,000/-per month by the date offiling the present suit and thus, there are lot of changedcircumstances both in the salary and the cost of living. Hence, sheprayed to enhance the maintenance from Rs.200/- to Rs.5,000/-per month from the date of suit.

5. The defendant filed written statement admitting therelationship between the plaintiff and the defendant and awardingmaintenance by the trial Court in O.S.No.337 of 1984 @ Rs.200/-per month to the plaintiff and Rs.125/- per month each to thechildren, who now became majors, but denied the contention thatthe defendant was drawing more than Rs.14,000/-per month as aCashier in Indian Overseas Bank while contending that the plaintiffpossessed sufficient properties and earning more than Rs.5,000/-per month by way of rent from the house bearing Door No.10-20-42 at Pithanidibba, Visakhapatnam, consisting of 4 rooms, twotiled houses and two thatched houses. She is also earningRs.5,000/-per month from her finance business. Thus, the plaintiffpossessed sufficient means to maintain herself and that there areno sufficient changed circumstances to enhance the maintenancefrom Rs.200/- to Rs.5,000/-per month to the plaintiff and finally,prayed to dismiss the suit.

6. Basing on the above pleadings, the trial Court framed thefollowing issues:

i) Whether the plaintiff is entitled for enhancement ofmaintenance amount granted in O.S.No.337 of 1984 onthe file of I Additional Sub-Judge, Visakhapatnam toRs.5,000/- per month as prayed for?

ii) To what relief?

7. During the course of trial, the plaintiff herself was examinedas P.W.1 and got marked Ex.A1-Certified copy of decree in O.S.No.337 of 1984. The defendant himself was examined asD.W.1 and also examined D.W.2, but no document was marked onhis behalf.

8. Upon hearing the arguments of both the counsel andconsidering the oral and documentary evidence, the trial Courtdismissed the suit holding that there are no changedcircumstances to enhance the maintenance from Rs.200/- toRs.5,000/-per month.

9. Aggrieved by the decree and judgment of the trial Court inO.S.No.33 of 2002 dated 19.10.2006, the plaintiff beingunsuccessful, preferred this appeal on various grounds mainlycontending that the observations of the trial Court that the salaryof the defendant to an extent of Rs.1200/- per month was attached,is only towards arrears of maintenance and not towardsmaintenance per month and the trial Court did not consider thesaid contention in proper perspective, that apart, the propertiesown and possessed by the plaintiff were not proved by therespondent, so also the income derived there from. In theabsence of any material, the trial Court ought not to have believedthe defence set up by the defendant. The defendant is working asCashier in Indian Overseas Bank by the date of filing the presentsuit, earning not less than Rs.14,000/-per month and the plaintiff isentitled to lead same standard of life which the defendant isleading, apart from that there is lot of change in the price ofhousehold articles etc., but the trial Court did not take intoconsideration and committed an error and dismissed the suit.

10. The counsel for plaintiff would contend that the amount ofmaintenance awarded in O.S.No.337 of 1984 is not sufficient evento meet monthly medical expenses at the age of 50 years, thatapart there is lot of hike in price of necessaries and hike in salary of defendant to many fold, but trial Court did not take indeed noteof the material change in circumstances and committed an error.Per contra, the defendant’s counsel argued in support of Judgmentand decree under challenge in all aspects, while contending that inthe absence of proof of hike in salary of defendant, noenhancement can be ordered and rightly dismissed the suit.

11. Admittedly, the plaintiff and defendant are wife and husbandand they lived for some time and blessed with two children.However, the defendant neglected to maintain the plaintiff andthereby, she filed a suit in O.S.No.337 of 1984 and obtained adecree for maintenance @ Rs.200/-per month for herself.However, her contention is that the amount awarded by the trialCourt is not sufficient and in view of the changed circumstances,she is entitled to maintenance @ Rs.5,000/-per month enhancingmaintenance from Rs.200/- to Rs.5,000/- per month. According tothe admissions made by the defendant, he is working as anemployee in Indian Overseas Bank, however, in the affidavit dated14.05.2004 filed along with the counter, he asserted that he isworking as a Class IV employee in Indian Overseas Bank, earningRs.4,500/-per month. Even assuming for a moment that he isworking as Class IV employee, drawing Rs.4,500/-per month,there is lot of increase in his salary, but for the reasons bestknown to the defendant, he did not produce the salary certificate toestablish the salary which he is earning. If the salary certificate ofthe defendant is produced before the trial Court, it would havedisclosed his monthly earnings. The contention of the plaintiff isthat the defendant is working as Cashier and presently working asManager in Indian Overseas Bank, drawing sufficient income, butshe did not produce any proof to establish that the defendant isworking as Manager in Indian Overseas Bank, drawing more thanRs.20,000/- per month. However, the specific assertion in theplaint as well as in the evidence is that he was working as Cashier, drawing Rs.14,000/-per month by the date of filing thesuit, which was denied contending that he is working as Class IVemployee, drawing Rs.4,500/-per month. It is a known fact thatthere are lot of material change in circumstances after 2002,including change in the price index, cost of necessaries and costof living etc., but the increase in the cost of living is the mainchanged circumstance to enhance maintenance.

12. According to Section 25 of the Act, the amount ofmaintenance, whether fixed by a decree of court or by agreement,either before or after the commencement of this Act, may bealtered subsequently if there is a material change in thecircumstance justifying such alteration.

13. The only material changed circumstance is, increase in theincome of the defendant and hike in price of necessaries and priceindex but it is not substantiated by any piece of evidence.However, a judicial notice can be taken to the fact that there ismaterial change in the standard of living and cost of necessaries,but the trial Court did not take into consideration of change in theprice index, cost of living etc. while declining to enhancemaintenance from Rs.200/- to Rs.5,000/-per month claimed by thepetitioner. Even assuming for a moment that the defendant isworking as an employee in Indian Overseas Bank either asCashier or Manager, the plaintiff is supposed to lead the samestandard of life. The maintenance of Rs.200/- per month awardedin O.S.No.337 of 1984 is not sufficient to meet expenses for a day.Therefore, taking into consideration the present price index,material change in the cost of living after filing O.S.No.33 of 2002i.e., within 12 years, we find that it is a fit case to enhancemaintenance from Rs.200/- to Rs.2,500/-per month.

14. The trial Court did not consider the material change in thecircumstances like hike in salary after 1984 and cost of living which enables the Court to alter maintenance by exercising powerunder Section 25 of the Act , but dismissed the suit erroneously onthe ground that the salary of the defendant was attached to anextent of Rs.1200/-per month, but this reasoning is incorrect forthe reasons that the trial Court in O.S.No.337 of 1984 awardedmaintenance only Rs.200/-per month, thereby the question ofattaching the salary for recovery of maintenance at Rs.1200/- permonth does not arise. The attachment of salary is only forrecovery of arrears of maintenance. Hence, the reasoningrecorded by the trial Court does not stand to any legal scrutiny.Therefore, the finding of the trial Court is erroneous.

15. Considering the facts and circumstances of the case, moreparticularly, material change in the circumstances of the case, wefind that it is appropriate to enhance the maintenance fromRs.200/- to Rs.2,500/-per month to the plaintiff.

16. In the result, the appeal is allowed in with costs settingaside the decree and judgment passed by the trial Court inO.S.No.33 of 2002 dated 19.10.2006 granting decree in favour ofthe plaintiff, enhancing maintenance from Rs.200/- to Rs.2,500/-per month from the date of the suit. Miscellaneous petitions, if any,pending in this appeal shall stand closed.

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RAMESH RANGANATHAN, J

31[st] December, 2014

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M. SATYANARAYANA MURTHY, J

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